********************************************************
NOTICE
********************************************************
This document was converted from
WordPerfect or Word to ASCII Text format.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Word or WordPerfect version or Adobe Acrobat version (above).
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Puerto Rico Tower Co., Inc. ) File No. EB-00-SJ-089
)
Owner of Antenna Structure ) NAL/Acct. No. X3268003
Registration # 1205510 )
Playa de Ponce, Puerto Rico )
FORFEITURE ORDER
Adopted: January 3, 2001 Released: January 5,
2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand dollars
($10,000) to Puerto Rico Tower Co., Inc. (``PRTC'') for
willful and repeated violations of Section 17.51(a) and (b) of
the Commission's Rules (``Rules'').1 The noted violations
involve PRTC's failure to exhibit red obstruction lighting and
medium intensity obstruction lighting on its Playa de Ponce,
Puerto Rico antenna structure.
2. On September 25, 2000, the Commission's San Juan,
Puerto Rico, Resident Agent Office (``San Juan Office'')
issued a Notice of Apparent Liability for Forfeiture (``NAL'')
to PRTC for a forfeiture in the amount of ten thousand dollars
($10,000).2 PRTC filed a response to the NAL on October 26,
2000.
II. BACKGROUND
3. PRTC owns an antenna tower located at Playa de Ponce,
Puerto Rico, with antenna structure registration (``ASR'')
number 1205510. The ASR for the Playa de Ponce tower
indicates that red obstruction lighting and medium intensity
obstruction lighting is required. On June 29, 2000, an agent
from the Commission's San Juan Office inspected the Playa de
Ponce tower at 11:45 a.m. AST and observed that the tower's
medium intensity obstruction lighting was not operating and
that the ASR number was not posted at the base of the
structure. On July 2, 2000, the agent again surveyed the
Playa de Ponce tower at approximately 7:30 p.m. AST and
observed that the tower's red obstruction lighting was not
operating.
4. On July 3, 2000, an agent from the San Juan Office
contacted the Federal Aviation Administration's San Juan
Flight Service Station (``San Juan FSS'') to find out whether
there was a Notice to Airmen (``NOTAM'') 3 in effect for the
Playa de Ponce tower. The San Juan FSS informed the agent
that there was no NOTAM in effect for this tower. The agent
then contacted Mr. John Campbell, President of PRTC, and
informed him that the Playa de Ponce tower's red obstruction
lighting and medium obstruction lighting was not operating and
that there was no NOTAM in effect for this tower. Mr.
Campbell told the agent that he would get a NOTAM issued for
the tower immediately.
5. On September 14, 2000, two agents from the San Juan
Office surveyed the Playa de Ponce tower at approximately
12:15 p.m. AST and observed that the tower's medium intensity
obstruction lighting was not operating. One of the agents
subsequently contacted the San Juan FSS to find out whether
there was a NOTAM in effect for the tower. The San Juan FSS
informed the agent that there was no NOTAM in effect for this
tower. The agent proceeded to have a NOTAM issued due to
safety concerns.
6. On September 15, 2000, an agent from the San Juan
Office contacted Mr. Tim Lang at PRTC and informed him that
the Playa de Ponce tower's lighting was not operating. Mr.
Lang stated that he had just left the Playa de Ponce site and
would return to the site to check the lights. Mr. Lang called
back and informed the agent that indeed the lights were not
functioning and that he had arranged to have an electrician
repair the lights that afternoon. Mr. Lang called again later
that day and left a message indicating that the lights had
been repaired.
7. On September 25, 2000, the San Juan Office issued an
NAL for a forfeiture in the amount of $10,000 to PRTC for
failing to exhibit the required red obstruction lighting and
medium intensity obstruction lighting on the Playa de Ponce
tower in willful violation of Section 17.51(a) and (b) of the
Rules. PRTC filed a response to the NAL on October 26, 2000.
In this response, PRTC accepts the facts set forth in the NAL,
but denies that its failure to comply with the Commission's
rules regarding antenna structure lighting was ``willful.''
PRTC asserts that before Mr. Campbell spoke with the FCC agent
on July 3, 2000, it believed that the tower was less than 200
feet high and did not need lighting because the tower's
lightning rod was not then installed. However, PRTC
acknowledges that following Mr. Campbell's conversation with
the FCC agent on July 3, 2000, it reviewed the tower's
construction drawings and as-built plans and realized that the
tower, when measured from ground level as per FCC regulations,
has a height of approximately 203 feet, not including the
lightning rod. PRTC further asserts that it made diligent
efforts to bring the tower into compliance following
notification of the lighting outages by the San Juan Office on
July 3, 2000 and September 15, 2000.
III. DISCUSSION
8. As the NAL explicitly states, the forfeiture amount in
this case was assessed in accordance with Section 503 of the
Communications Act of 1934, as amended (``Act''),4 Section
1.80 of the Rules, 5 and The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087
(1997), recon. denied, 15 FCC Rcd 303 (1999) (``Policy
Statement''). In examining PRTC's response, Section 503(b) of
the Act requires that the Commission take into account the
nature, circumstances, extent and gravity of the violation
and, with respect to the violator, the degree of culpability,
any history of prior offenses, ability to pay, and other such
matters as justice may require.6
9. Section 17.51(a) of the Rules provides that all red
obstruction lighting must be exhibited from sunset to sunrise
unless otherwise specified in the ASR, while Section 17.51(b)
of the Rules provides that all high and medium intensity
obstruction lighting on antenna structures must be exhibited
continuously unless otherwise specified in the ASR. PRTC
admits that at the time of the inspections, the red
obstruction lighting and medium intensity obstruction lighting
on the Playa de Ponce tower was not operating. PRTC, however,
claims that the tower lighting violations were not ``willful''
because prior to July 3, 2000, it believed that the tower was
less than 200 feet in height without the lightning rod and
therefore did not need lighting. We disagree. Section
312(f)(1) of the Act provides that ``the term `willful,' when
used with reference to the commission or omission of any act,
means the conscious or deliberate commission or omission of
such act, irrespective of any intent to violate any provision
of this Act or any rule or regulation of the Commission
....''7 This definition applies to the term ``willful'' as
used in Section 503(b) of the Act. See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991). Moreover, a violation
resulting from an inadvertent mistake or a failure to become
familiar with the FCC's requirements is considered a willful
violation. See PBJ Communications of Virginia, Inc., 7 FCC
Rcd 2088 (1992); Standard Communications Corp., 1 FCC Rcd 358
(1986); Triad Broadcasting Co., Inc., 96 FCC 2d 1235, 1242
(1984). Thus, PRTC's tower lighting violations were willful
under Section 503(b) of the Act. In any event, Section 503(b)
of the Act authorizes the Commission to impose forfeitures for
either willful or repeated violations of the Commission's
rules.8 PRTC's tower lighting violations were repeated
because they occurred on more than one occasion. See Hale
Broadcasting Corp., 79 FCC 2d 169, 171 (1980). Finally, we
note that PRTC's remedial actions to correct the violations,
while commendable, are not a mitigating factor. See Station
KGVL, Inc., 42 FCC 2d 258, 259 (1973).
10. We have examined PRTC's response to the NAL pursuant to
the statutory factors above, and in conjunction with the
Policy Statement as well. As a result of our review, we
conclude that PRTC has failed to provide sufficient
justification for canceling or mitigating the proposed
forfeiture amount. Therefore, we affirm the forfeiture of ten
thousand dollars ($10,000).
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act,9 and Sections 0.111, 0.311 and 1.80(f)(4)
of the Rules,10 Puerto Rico Tower Co., Inc., IS LIABLE FOR A
MONETARY FORFEITURE in the amount of ten thousand dollars
($10,000) for failure to exhibit red obstruction lighting and
medium intensity obstruction lighting on its antenna structure
in willful and repeated violation of Section 17.51(a) and (b)
of the Rules.
12. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules11 within 30 days of
the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section
504(a) of the Act.12 Payment may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should note the NAL/Acct. No. referenced above.
Requests for full payment under an installment plan should be
sent to: Chief, Credit and Debt Management Center, 445 12th
Street, S.W., Washington, D.C. 20554.13
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to Puerto
Rico Tower Co., Inc., #364 Fernandez Juncos Ave., Puerta de
Tierra, Puerto Rico 00901.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.51(a) and (b).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
X3268003 (Enf. Bur., San Juan Office, released September 25,
2000).
3 Tower owners are required to report any obstruction lighting
outages to the nearest Flight Service Station or FAA office
immediately if the outage is not corrected within 30 minutes.
See 47 C.F.R. § 17.48(a). The FAA then issues a NOTAM, a written
advisory to aircraft pilots regarding a hazard or potential
hazard of which they should be aware. A NOTAM expires
automatically after 15 days, unless the tower owner calls the FAA
to extend the NOTAM.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 312(f)(1).
8 See 47 U.S.C. § 503(b)(1).
9 47 U.S.C. § 503(b).
10 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
11 47 C.F.R. § 1.80.
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.